Prof. Eric Huysecom and Dr. Anne Mayor Laboratory Archaeology and Population in Africa, University of Geneva,

Prof. Marc-André Renold Art-Law Centre, University of Geneva

Date: 16-17 November 2017

Location: ETH Zürich
Rämistrasse 101
8092 Zürich, Switzerland

Workshop Fees: CHF 50.00

Invited speakers (see preliminary program (PDF, 120 KB)) will introduce the problems around the antiquities and illicit art trade. Presentations will be made by representatives of AMS laboratories sharing their experiences and practice in dating antiquities. Allied professionals will explore the market for conflict antiquities and fake conflict antiquities as well as scientific and criminological approaches to looking at ways to combat the illicit trade in antiquities.

Image taken September 23, 2015
by the Office of the Attorney General of the Canton of Geneva - Image Credit: AFP

In December 2010, Swiss Federal Customs Administration authorities, acting under new customs legislation to combat trafficking in works of art, requested access to the inventory of Phoenix Ancient Art SA., a major supplier of museum-quality antiquities, which stores ancient works of art at the Ports Francs et Entrepôts de Genève, a freeport located in a sprawling grey industrial building on the corner of a busy junction in southwest Geneva.

For more information about freeports as a tax free haven to store art, please see a few of ARCA's earlier blog posts here, here, and here.

At the time of the audit, authorities inspected the holdings of both Phoenix Ancient Art and its warehouseman and freight forwarder, Inanna Art Services. During this inspection, Swiss authorities discovered, but didn't physically seize, a 1-2 ton, 150-180 CE Roman sarcophagus which depicted the twelve labours of the ancient Greek war deity, Hercules. According to customs information on file for the antiquity, the sarcophagus was imported into Switzerland in the name of Phoenix Ancient Art, which often used Inanna Art Services to store its goods or to transport works of art to and from other countries.

This extraordinary ancient funerary object, likely only one of four of this significant quality documented in the ancient art world, had little in the way of detailed provenance. For a piece of its quality to have nothing tying it to a previously known ancient art collection; no notations of its discovery or find spot, and nothing notable in the way of published scholarly examination of its style and iconography, rang alarm bells in Switzerland.

In consideration of the donation, Marc-André Haldimann, head of the archaeology department of the Musée d’Art ed d’Histoire of Geneva and the director of the museum, Jean-Yves Marin, went to the freeport and inspected the sarcophagus to carry out an appraisal for consideration. The pair however remained highly skeptical of the lack of established information on the ancient sarcophagus, which implied possible illicit origins.

How could such a prestigious object emerge on the ancient art market having never been talked or written about previously?

Wouldn't the archaeologist who discovered such a masterpiece have mentioned this spectacular find in his or her field notes?

Wouldn't a scholar of some repute have compared it in an academic article with the other known artworks by the same signatory group of sculptures or other sarcophagi depicting Hercules?

The only documentation Phoenix Ancient Art produced which attested to the fundamental question of this exceptional object's past, were independently established statements attesting that the ancient work of art was part of the Aboutaam collection from 2002 onward and a certificate from Art Loss Register attesting the object had been checked against ALR's known stolen art database registry. Ultimately the sale to the Gandur Foundation was cancelled, in no small part because of suspicions that the object had been smuggled out of its source country.

In March 2011, the Specialized Body for the International Transfer of Cultural Property at the Swiss Federal Office of Culture (FOC) issued a statement that they believed the sarcophagus had originated from the general area of the famous marble quarries of Dokimion in Phrygia, the present day Antalya region of Turkey. The Dokimeian white marble sarcophagus was likely sculpted sometime during the the second century, when the area was under Roman rule.

Based on the FOC's examination, Swiss authorities alerted their counterparts in Ankara, and Turkey in turn, issued a demand for the restitution of the rare antiquarian work by a letter rogatory of July 2011. Turkey also sent a request for mutual assistance to the Geneva court and an inquiry was formally opened in Switzerland to look into alleged violations of the Cultural Property Transfer Act (LTBC). This act requires art market professionals keep a register for 30 years, in which the "origin of the cultural property" is to be documented.

In order for the sarcophagus to have been in good standing in Switzerland under the LTBC, the dealers would be obliged to prove that the acquired object was in an old collection outside the source country prior to 2005 or to demonstrate that the object was not stolen or exported illicitly after 2005.

In October 2013, the case made its way through Swiss court. The Geneva Chief Public Prosecution Office and the Chief Public Prosecutor of Antalya conducted a comprehensive joint study with the Swiss magistrate in charge of the case traveling to Antalya, Turkey where Turkish Public Prosecutor Osman Şanal provided access to witnesses.

Testimonies were heard from Professor Haluk Abbasoğlu and Professor İnci Deleman who conducted excavations in the region where the sarcophagus was illegally excavated. The Swiss prosecutor also met with an unnamed imprisoned smuggler serving time on a separate smuggling charge in Elmalı prison. This smuggler allegedly confirmed that the artifact had been looted and smuggled out of Turkey.

Based on the evidence gathered, on September 21, 2015 Swiss authorities ordered the repatriation of the sarcophagus. But international legal proceedings move at a snail’s pace and the return of this one object, approved by the Geneva Court of Justice on May 2, 2016, was slowed again, due to a challenge by the Swiss Federal Court.

Phoenix Ancient Art operates a gallery in New York city as well as in Geneva Switzerland. Founded by Sleiman Aboutaam in 1968, the firm was incorporated in 1995. The second-generation family business is now managed by Sleiman's sons, Hicham Aboutaam and Ali Aboutaam, who took over the firm's operation after Sleiman’s death in 1998. The firm has been embroiled in a significant number of antiquities-related controversies.

A sampling (not a complete listing) of other instances of concern involving this firm include:

A third-century CE South Arabian alabaster stele the brothers attempted to sell in May 2002 via Sotheby’s auction house in New York for approximately $20,000 to $30,000 in which they listed the provenance for the piece as having belonged to a private English collection. Sotheby's researchers conducting due diligence before the auction found published photographs of the stele indicating that this tablet, carved in low relief, with an image of the fertility goddess Dat-Hamin, had been stolen in July 1994 from the Aden Museum in Yemen's port city during the country's previous war. This object was forfeited to the U.S. government in December 2003 and eventually returned to Yemen.

The Egyptian authorities have accused Ali Aboutaam of involvement with Tarek El-Suesy (al-Seweissi), who was arrested in 2003 under Egypt’s patrimony law for illegal export of antiquities. Ali Aboutaam was tried in absentia, pronounced guilty and was fined, and sentenced to 15 years in prison in the Egyptian court in April 2004. To date, he has not served any of the Egyptian sentence.

The Aboutaams voluntarily repatriated 251 Antiquities valued at $2.7 Million to the State of Italy in May 2009 tied to one of Italy's most notorious smuggling rings.

Advice on collecting ancient art

ARCA encourages its readers to remember that the only way to avoid looting is to pressure dealers and collectors to not participate directly or indirectly in looting through their sourcing and purchases. Collectors of ancient art are only the most current stewards of objects with long and telling histories. The provenance, or ownership history of a piece of art is important and should detail strong proof that an object has come from a legitimately traded collection.

Buying and trading in ancient works of art, without well documented collecting histories, simply for their beauty or for the purpose of rescuing them from countries in conflict, only encourages further looting and further laundering of smuggled illicit objects.

ARCA strongly discourages collectors and museums from buying or accepting objects that cannot pass the 1970 test or which lack a legitimate export permit from the actual and correct country of the object's origin.

In 1897 Camille Pissarro painted Rue Saint-Honore in the Afternoon, Effect of Rain. Forty years later, in 1939, Lilly Cassirer Neubauer, a member of the prominent Jewish publishing family that had owned the painting since it was created, was faced with a stark choice: hand the painting over to a Nazi art dealer and be given, in return, an exit visa to leave Germany with her husband and young grandchild, or remain in Germany amid the swirling and deadly storm engulfing Germany’s Jews.

She chose the former: Lilly, her husband Otto, and grandson Claude fled Germany; the painting disappeared; and the ridiculously low sum that Lilly had been promised as the “price” of the painting was locked in an inaccessible German bank account.

After the war, Lilly sought and was granted partial financial compensation, but without foregoing her claim to the painting. In 1958 she was recognised as the rightful and legal owner of the painting. But the Pissarro was lost.

Or so she thought. In fact, in 1951 it had been sold to a collector in Los Angeles, with the Frank Perls Gallery earning a commission on the sale. Less than 12 months later, it was sold again, this time through the New York dealers M Knoedler & Co, to a St Louis, Missouri, collector.

Two decades later, in late 1976, the Baron Thyssen-Bornemisza, of Switzerland, purchased it through another New York dealer, Stephen Hahn. In 1998 the Baron lent his entire collection of over 700 paintings to Spain, who established a non-profit state-owned Foundation to own, house and display the collection, and redesigned and rebuilt the Villahermosa Palace in Madrid for the purpose.

Then in 1993 the Spanish Government purchased the Baron’s collection, for over $300 million. Apart from two short periods when it was on loan elsewhere, the Pissaro has been on public display at the Foundation’s museum, the Museo Thyssen-Bornemisza (http://www.museothyssen.org/en/thyssen/home), in Madrid ever since.

Lilly Cassirer died in 1962. Her heir, her grandson Claude, discovered that the painting was on display in Madrid in 2000. Since then he, and after his death in 2010 his heirs, have been trying to recover the painting, through an extended and complicated series of court cases in both Spain and California.

First, this result highlights the irreconcilable and unbridgeable gulf between, in very general terms, common law and civil law systems when it comes to dealing with the later ownership of property that has been stolen. In very broad terms in common law countries (those who derive their legal systems from the English common law, including the USA, Canada, Australia, New Zealand and others), a thief can give no better title down the chain of ownership than the thief had. Which is none. So, if and when the original dispossessed owner or their heir, turns up and claims the property back, then that claim will prevail.

This principle can be traced back to the Byzantine Emperor Justinian’s mid-6th century Digest:

Which translates to: "No-one can transfer to another greater right than he himself has." The principle is known in the common law, from this rule, as the Nemo dat rule.

In stark contrast, in civil law countries, predominantly but not exclusively those who derive their legal systems from the 1804 Napoleonic Civil Code and in particular Article 2262 of the Code,[2] a bona fide purchaser (and in some cases, it turns out Spain is one, even the successor in possession of a purchaser who purchased knowing of the theft) can acquire good title to even originally stolen property, after the expiration of a specified period of time.

The great English jurist Lord Denning put the conflict this way:

“In the development of our law, two principles have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is for the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title.”[3]

In the ruling on the Pissarro, the judge explicitly recognised the competing policy decisions underlying the legislative choice between the two approaches:

“Generally, [the civil law approach] serves the important interests of certainty of title, protecting defendants from stale claims, and encouraging plaintiffs not to sleep on their rights.

…

[The common law approach] recognizes the difficulties faced by owners in discovering the whereabouts of personal property even when held openly and notoriously, and serves to protect the interests of “the rightful owner” over subsequent possessors. It also serves to encourage subsequent purchasers to determine the true owner of property before purchasing that property.”[4]

An ultimately unsuccessful attempt was made by UNIDROIT in the 1960s through to 1989 to secure a convention which would have seen the adoption of a Uniform Law on the Acquisition in Good Faith of Corporeal Movables,[5] but the tension remains, at least in the international context, presently irreconcilable.

One attempt has been made to, as it were, agree to disagree on this fundamental issue, and to reach a pragmatic solution. That effort is encapsulated in The UNIDROIT Convention on Stolen or illegally Exported Cultural Objects 1995[6]. This was negotiated as a compatible and complementary agreement to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which deals primarily with cultural property stolen in peacetime.

Article 3 of the UNIDROIT Convention states, simply:

“The possessor of a cultural item that has been stolen shall return it.”

That somewhat stark requirement is modified to an extent by the Convention’s provision to the effect that, if a State provides to this effect, compensation to the final owner can be paid if the final possessor has made appropriate enquiries. Article 4 of the Convention states:

“(1) The possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object.”

But note the immediately following clause:

“(2) Without prejudice to the right of the possessor to compensation referred to in the preceding paragraph, reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the compensation where to do so would be consistent with the law of the State in which the claim is brought.”

This is a clear attempted compromise between two conflicting stances, which were both apparent and conflicting during the 6 or so years of negotiations that lead up to the signing of the Convention in Rome in 1995.

So, if the Baron had chosen a common law country as the final resting place of his collection, the outcome would most likely have been quite different. But he did not.

The second aspect worthy of note in the Pissarro ruling is the Judge’s closing exhortation to the parties:

“Although the Foundation has not prevailed in this prolonged and bitterly contested litigation, the Court recommends that, before the next phase of litigation commences in the Ninth Circuit, the Foundation pause, reflect, and consider whether it would be appropriate to work towards a mutually-agreeable resolution of this action, in light of Span’s acceptance of the Washington principles and the Terezin Declaration, and, specifically, its commitment to achieve “just and fair solutions” for victims of Nazi persecution.”

The reference to the Washington Conference is a reference to The Washington Conference on Holocaust-Era Assets, hosted by the U.S.’s Department of State and the U.S. Holocaust Memorial Museum, held in over four days from 30 November to 3 December, 1998[7]. The Terezin Declaration came out of the European-Union sponsored Holocaust Era Assets Conference in Prague and Terezin, held on 26-30 June, 2009[8].

“In developing a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art, the Conference recognizes that among participating nations there are differing legal systems and that countries act within the context of their own laws.

1.Art that had been confiscated by the Nazis and not subsequently restituted should be identified.

4. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.

5. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.

8. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.

11. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”

The Terezin declaration[10] from 30 June 2009 is to like effect. Both encourage the resolution of claims not on the basis of legal technicalities, but rather “on the facts and the merits”[11].

It seems clear from his closing remark that the Judge in the Pissarro case was frustrated by his inability to decide the aspect of the case by reference to “the facts and the merits”.

In this respect, the hybrid jurisdiction granted by statute to the United Kingdom’s Spoliation Panel has much to recommend it.

The Spoliation Advisory Panel was established in 2000 as a direct result of the Washington Conference in December 1998[12]. It is chaired by a senior UK Judge, a retired Lord Justice of Appeal. The Panel is a group of expert advisers who can be asked to consider claims for the return of an object plundered or lost during “the Nazi era” – 1933 to 1945. Once it has heard a case, the Panel makes a recommendation to the Secretary of State, who (to date) has always followed the Panel’s recommendations as to how a “fair and just” solution might be achieved.

The governing instrument which directs the Panel’s function is its Constitution and Terms of Reference. This permits the Panel to consider claims “from anyone (or from any one or more of their heirs) who lost possession of a cultural object during the Nazi era, where the object is now in the national collection or in a museum or institution established for the public benefit.”[13]

Whilst the Panel can consider legal issues, it does not decide as to legal rights, including title. The Panel’s process is explicitly an alternative to litigation. It must give “due weight to the “moral strength of the claimant’s case”, and consider whether any moral obligation rests on the institution. It is required to seek a “fair and just solution”.

Thus, if the baron had chosen the United Kingdom as the final resting place for his collection, it seems likely that a claim to the Spoliation Panel would have resulted. This would have seen the Panel encourage the parties to try to find a win-win solution themselves, or, failing that, could have (assuming that the collection had ended up, as it did in Spain, as part of the UK’s “national collection or in a museum or institution established for the public benefit,”) recommended the return of the painting, given the reasonably clear moral claim stemming from its original theft, in appalling circumstances, from Lilly Cassirer.

The Swiss museum Cornelius Gurlitt bequeathed his paintings will begin the process of deciding whether or not to accept the inheritance, they announced in a press release today:

On May 26, 2014, the board of trustees of the Kunstmuseum Bern met for the first time in a special session to examine the situation in regard to Mr Cornelius Gurlitt naming the Kunstmuseum Bern as his unrestricted sole heir. The will has not been opened yet; once this is the case, the museum will have a deadline of six months in which it must decide on whether it will accept the inheritance. In this period the Kunstmuseum Bern will make an assessment of the situation by collecting as much material containing relevant information as possible.
Thus the Kunstmuseum Bern does not yet have an inventory at its disposal, and it has not been able to inspect the art collection. On the occasion of a visit to Munich, the president of the board of trustees and the director communicated with the authorities there. The political authorities in Switzerland are being kept informed on a regular basis.
It has been decided that the Kunstmuseum Bern will seek legal assistance; the name of our legal advisor will be made known publicly when he or she has been definitively appointed.
The Kunstmuseum Bern will notify the media when relevant new information is available, at the earliest at the beginning of July.

Here's a link to a video showing an exhibit, "Art Predators and The Rediscovered Heritage .. the story of recovery", at the National Etruscan Museum at Villa Giulia in Rome (September 29 through December 15, 2012) of recovered stolen antiquity objects recovered by Italy's Carabinieri Department for the Protection of Cultural Heritage (Carabinieri Tutela Patrimonio Culturale), the Justice Department, and archaeologists in an investigation lasting more than two decades.

The Villa Giulia-Museo Nazionale Etrusco is located north of the Piazza del Popolo in the western outskirts of the Villa Borghese (a really long walk from the Galleria Borghese as I once found out).

These hundreds of works of art were stolen by grave robbers in clandestine excavations in Etruria, Puglia, Sicily and Calabria (Google Translation of article by Irene Buscemi, "Predatori d'arte e patrimonio ritrovato in mostra a Roma", September 30, 2012, Il Fatto Quotidiano). These amphora, kylix (pottery drinking cups) and bronzes were illegally sold in the 1970s and 1980s by merchants and traffickers to famous foreign museums (Getty Museum in Los Angeles, The Metropolitan in New York, and institutions in Australia and Japan). Two archaeologists, Daniela Rizzo and Maurizio Pellegrini, assisted in the project and curated the exhibit. Many of these objects were seized from a warehouse in the Free Port of Geneva in 1995 (for more information you may refer to "The Medici Conspiracy" (Public Affairs, 2006) by historian Peter Watson and Italian journalist Cecilia Todeschini). The Carabinieri used polaroid photographs, charts, and documents found in this investigation to recreate the illicit trade that funneled objects through art collectors and auctions houses such as Sotheby's in London.

Here's a link to the exhibit at the Villa Giulia. The exhibitors explain here that for the first time the National Etruscan Museum of the Villa Giulia is presenting some archaeological materials chosen from among 3,000 artifacts seized in 1995 by the Carabinieri Cultural Heritage Projection from the Free Port of Geneva and returned to Italy after a long legal battle based upon documents found in the raid that allowed the Carabinieri and prosecutors to reconstruct the trafficking routes and illegal excavations. In this illegal operation, objects were illegal dug up out of the ground, moved from Italy to Switzerland, cleaned and then provided paperwork to market the objects to international museums:

The exhibition aims to raise awareness of the general public the hard work done in recent years by the Judiciary, flanked by Carabinieri Cultural Heritage Protection, with the Guardia di Finanza and the archaeologists of the Superintendent [Soprintendenza per i Beni Archeologici dell'Etruria meridionale], which has led to some important results, perceived not only through a high number of artifacts recovered, by especially in the significant drop in illegal excavations at the archaeological sites of Cerveteri, Vulci, and Tarquinia, once the subject of real raids [translated with the help of Google].

Four men, including the leader of the gang that conducted the robbery, were arrested in Belgrade and Cacak, according to Prosecutor Radisavljevic;

The police raids this week, planned since 2010, "took place when the suspected robbers decided to take the Cézanne painting to a wealthy Serb who agreed to buy it for (euro) 3.5 million ($4.6 million), according to Interior Minister Dacic.

Police also found $2 million in cash and firearms with the four men, according to Dacic.

Thank you to Marc Balcells, ARCA alum, who noticed the news on recovery of the Degas painting.